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NaraIn Datt Vs. Swaran Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal Nos 344 of 1974
Judge
Reported inILR1976Delhi578
ActsCode of Civil Procedure (CPC), 1908 - Sections 39 and 115
AppellantNaraIn Datt
RespondentSwaran Singh and ors.
Advocates: V.M. Tarkunde,; S.N. Chopra,; D.D. Chawla,;
Cases Referred(fide Fleteher v. Beajey
Excerpt:
(i) civil procedure code - section 115--interference in revision--legal approach of lower appellate court erroneous--interference justified.; where the approach of the lower appellate court was legally erroneous and the error was also a grave one, a court of revision would be justified in interfering with the order.; in the instant case, the plaintiff filed a suit for mandatory injunction restraining the petitioner from constructing a cinema building on the suit property. the said construction was sought to be prevented on the ground that some municipal bye-laws having operation from a later period than the concerned period were infringed. the plaintiff also applied for temporary injunction pending suit. the trial court, however, declined to grant such an injunction but the same was.....s. rangarajan, j. (1) this petition, under section 115 of the code of civil procedure, is directed against the order dated 19-2-1974 passed by the learned additional district judge (shri h. k. s. malik) restraining the petitioner from running a cinema pending disposal of the suit filed by the plaintiffs/respondents (other than the delhi municipal corporation, hereinafter called the m.c.d.) for mandatory injunction restraining the petitioner from constructing the cinema building on the suit property situate in the revenue estate in raj block navin shahdara extension, shahdara, delhi. the trial court, however, declined to grant such an injunction pending the suit. (2) there have been further affidavits and counter-affidavits filed by the parties during the pendency of this petition in this.....
Judgment:

S. Rangarajan, J.

(1) This petition, under section 115 of the Code of Civil Procedure, is directed against the order dated 19-2-1974 passed by the learned Additional District Judge (Shri H. K. S. Malik) restraining the petitioner from running a cinema pending disposal of the suit filed by the plaintiffs/respondents (other than the Delhi Municipal Corporation, hereinafter called the M.C.D.) for mandatory injunction restraining the petitioner from constructing the cinema building on the suit property situate in the revenue estate in Raj Block Navin Shahdara Extension, Shahdara, Delhi. The trial court, however, declined to grant such an injunction pending the suit.

(2) There have been further affidavits and counter-affidavits filed by the parties during the pendency of this petition in this Court concerning some events subsequent to the filing of the plaint. It seems, thereforee, convenient to state the position as it emerges not only from the pleadings before the trial court (including the application for an injunction, the reply thereto and the still further reply of the plaintiffs), but also on the basis of the affidavits and counter-affidavits filed in this Court .

(3) Briefly stated the facts are that the present petitioner acquired on lease 'the plot of land in question on 21-11-1961. It is common ground that in the adjoining plot there has been the Radhu cinema. The plaintiffs had admittedly purchased the plots nearby between the years 1965 1973, i.e. after the petitioner had applied for sanction to construct the cinema and when the Radhu cinema was running next to the now completed building put up by the petitioner. On 25-1-1962 the petitioner applied to the M.C.D. for sanction of the building plans of the cinema on the said plot. The said application for sanction seems to have had a chequered career. It appears to have been refused by a certain officer of the M.C.D. on 16-3-1962 against which the petitioner filed an appeal before the Deputy Municipal Engineer of the M.C.D. who also rejected the appeal. It is alleged that the petitioner filed a second appeal to the Commissioner who accepted the appeal. The petitioner claims that the plans were duly sanctioned and that they were sent to the petitioner along with the letter of sanction (No. 641/A dated 15-1-1963).

(4) The petitioner had filed a Writ Petition (No. 668-D/63) in this High Court for a direction that the M.C.D. should proceed on the basis that the building plans were duly sanctioned. At the time of admitting the Writ Petition a Division Bench of the Punjab High Court had appointed a Commissioner to collect certain records from the M.C.D. immediately. It is alleged that the records could not be collected on the same day since after some waiting for some time the Commissioner was asked to come on the following day; on that day (28-8-1963) the Commissioner was informed by the Deputy Commissioner that the relevant files were not traceable. B. C. Misra, J. accepted the Writ Petition and issued a mandamus to the M.C.D. to proceed on the basis that the building plans of the petitioner had been validly sanctioned on 15-1-1963 and the same were still subsisting and valid. On account of the delay, of nearly 8 years, a direction was given that the time spent on litigation i.e. from 26-8-1963 till the date of the judgment, namely, 15-12-1972, should be excluded from the calculation of the 'reasonable period' mentioned in section 341 of the Delhi Municipal Corporation Act, 1957 (hereinafter called the Act); the petitioner was to have reasonable time to complete the construction from then.

(5) It is stated before me that against the said decision a Letters Patent Appeal is pending in this Court; stay of construction of the cinema building (pending the appeal) was refused by order dated 7-5-1973. It is also stated by the petitioner that he started con structing the cinema on 21-4-1973; the construction has been completed though a completion ceitilicate has not been issued by the M.C.D.

(6) The suit, in the course of which this Revision Petition arises, was filed on 5-6-1973, along with an application for a temporary injunction which was granted on the same day but was finally vacated. The injunction application was dismissed on 8-6-1973, against which an appeal was successfully preferred before the learned Additional District Judge.

(7) It may be mentioned at this stage that there was an attack on the judgment of the appellate court on the ground that the same had been ante-dated. The petitioner had gone the length of filing an application on 21-2-1974 for transfer of the appeal from the file of Shri H. K. S. Malik to the file of some other Judge; an order of stay was also obtained. Remarks were called for by the District Judge from the Additional District Judge; the latter had not only pointed out that the allegations made were not correct but he had pronounced the judgment even on 19-2-1974; the appeal was heard on 16-2-1974 and the case had been posted to 19-2-1974 for pronouncement of judgment. Nonetheless Shri S. N. Chopra, learned counsel for the petitioner, who argued the petition before me to start with, vehemently contended that the decision of the learned Additional District Judge was ante-dated. I thought that there was no substance at all in the said accusation against the learned Additional District Judge; Shri V. M. Tarkunde, who continued the arguments for the petitioner from a later stage, however, chose to argue the appeal on the merits and told me that he would not make any reference to the said attack by the petitioner against the learned Additional District Judge, Shri S. N. Chopra was also present along with Shri Tarkunde during the arguments throughout. In the circumstances I am not even setting out here the details of the said con- tension of Shri S. N. Chopra.

(8) It seems needless, in the view I take, to be detained by any question of the alleged lack of jurisdiction on the part of the learned. Additional District Judge to pass an order of interim injunction pending the suit, of a kind different from that which had even been prayed for in the plaint. In other words, the argument by Shri V. M. Tarkunde was that while the plaint contained only a prayer for a mandatory injunction restraining the petitioner from constructing the building there could not be a prayer, in such a suit, for an interim injunction restraining the petitioner from running the cinema, the construction of which had already been completed; such a relief could not, in any case, be granted without an amendment of the plaint itself. It seems needless, as I said, to go into this aspect for the purpose of the present Revision Petition because if the approach of the learned Additional District Judge was legally erroneous and the error was also a grave one a court of revision would be justified in interfering with the order, even apart from any lack of jurisdiction in the older and traditional sense. Reference may be made in this connection to the observations of K. K. Mathew, J who spoke for the Supreme Court in M. L. Sethi v. R. P. Kapur he referred to the older view concerning the possibility of interference, while exercising jurisdiction under section 115 C.P.C., being confined only to two legal errors, namely (1) rest judicata and (2) limitation. Mathew, J. pointed out that the word 'jurisdiction' was 'a verbal cast of many colours'; after referring to the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission 1969 2 A.C. 147 and after setting out the speeches of Lord Reid and Lord Pearce, Mathew, J. observed that the courts had moved away from the traditional concept of jurisdiction to such an extent that the difference between jurisdictional error and error of law within jurisdiction had been reduced 'almost to a vanishing point'. It would be best to quote Mathew, J. :

'THEpractical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close 'to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision on a matter with which they have no right to deal', 'imposing an unwarranted condition' or 'addressing themselves to a wrong question'. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (See H. W. R. Wade, 'Constitutional and Administrative Aspects of the Ani

(9) In view of the above observations the question that falls for decision in the present Revision Petition is whether the lower appellate court had committed any legal error, which is also grave, to merit interference. As the ensuing discussion will show the approach of the learned Additional District Judge was gravely erroneous.

(10) Yet another decision of the Supreme Court, rendered subsequent to the impunged decision, would also have to be noticed at the outset: it is K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council Udipi : [1975]1SCR680 . A. N. Ray, C.J., who spoke for the Supreme Court, held that though the right to build on one's own land is a right incidental to the ownership of that land. the exercise of that right has been regulated in the interest of the community residing within the limits of a Municipality; an illegal construction of a cinema materially affected the right of enjoyment of the property by persons residing in that area. It was explained that the municipal authorities owed a duty and an obligation under this statute to see that the residential area is not spoiled by any unauthorised or illegal construction of a cinema building in violation of municipal regulations. There appears to have been some controversy regarding this position, which the lower appellate court has noticed. A Division Bench of the Calcutta High Court had held in Nandlal Ladia v. Provudayal Tikriwalla : AIR1952Cal74 that an adjoining owner was not entitled to an injunction merely because the building was being constructed in violation of the municipal byelaws. In a later case of the same High Court (Krishna Kali Malik v. Babulal Shaw, : AIR1965Cal148 A. N. Ray, J. (as 'he then was) discussed the legal position. After' referring to the earlier Division Bench ruling he reached the same conclusion, since reached in K. Ramadas Shenoy.

(11) The legal question having now been settled in the aforesaid manner it must be held in the plaintiff's favor that if any violation had been made not only of the provisions of the Act or Byelaws framed there under but also of the provisions of the Delhi Development Act, 1957 then in that event the plaintiffs would be entitled to a temporary injunction for that very reason without proof of any special damage or even inconvenience. But Shri V. M. Tarkunde has ably explained that in this particular case no provision of any of the two Acts (the Delhi Municipal Corporation Act or the Delhi Development Act, 1957) has been violated. In order to appreciate the above argument of Shri Tarkunde the relevant provisions of the two enactment will have to be noticed separately.

(12) It may be convenient to refer to the Act (i.e. the Delhi Municipal Corporation Act, 1957) first. It was stated in the plaint that there was a fake sanction for the construction of the cinema. A sanctioned plan was produced before B. C. Misra, J. at the time of the hearing of the Writ Petition as it was also produced before me. But it is needless to be detained at this stage about its genuineness for there is nothing prima facie to show that it was a fake sanction for construction of the cinema. Shri S. N. Marwah, learned counsel for the M.C.D. wished to urge that the officer who gave the sanction had been dismissed, but no such facts are even pleaded; the M.C.D. did not even contest the application for a temporary injunction by filing any reply in the trial court. I am, thereforee, proceeding on the footing of its being a genuine sanction for the purpose of this Revision Petition especially when the petitioner has been able to obtain a verdict in his favor by B. C. Misra, J. Though there has been an appeal against the said decision this Revision Petition has to be decided, in the circumstances, on the footing that the sanction is geunine.

(13) Shri S. N. Marwah also brought to my notice that the completion certificate has not been issued by the M.C.D. But 'this is a contentious question which has to be gone into separately between the petitioner, on 'the one side, and the M.C.D. on the other. In a suit by the plaintiffs, who are residents of that locality, against the petitioner for an injunction of the kind described above and for a temporary injunction pending their suit it would not be proper to look at the stand taken by M.C.D. in this Court for the first time. If they wanted to raise any ground concerning the sanctioning of the plan or take steps to revoke the sanction it would be a distinct matter, falling outside the scope of this Revision Petition.

(14) It may also be noticed that certain grounds have been mentioned in the plaint for showing that the sanction was illegal, even if it had in fact been obtained; it would be necessary, to notice these grounds and deal with them. The allegations, in the plaint, in so far as the present question is concerned, have been summarised in paragraph 4(h) of the plaint as follows :

'THEproposed construction of the Cinema Building shall be vocative of all the above mandatory conditions inasmuch as : (i) Bhartiya Mahila Higher Secondary Govt. School Shamlal College, and Gandhi Memorial School are all situated within the prohibited distance. (ii) Mosque on the other side of the G.T. Road and also a Harijan temple as well as Dharamshala of L. Asa Ram are also situated within the prohibited distance. (iii) A Petrol pump, Police Station and Fire Brigade are also situated in the same locality and within a prohibited distance. (iv) The existing G.T. Road is absolutely inadequate even for the present traffic and pedestrians. There is also no provisions of roads as required in the Byelaws, and (v) There is residential locality on every side and no commercial pocket.'

It may be noticed that there was no reference in the bye-law as unamended to mosque, police station and fire brigade etc. It may also be noticed in this connection that the plaint sets out the concerned byelaws applicable to the present case as those which had been amended in the year 1964 whereas the application for sanction in this case was much prior thereto, namely, on 25-1-1962. The Delhi Municipal Corporation (Buildings) Byelaws were framed in the year 1959 by the Government of India under sections 332 to 336 and 346 and sub-section (1) of section 481 read with sub-section (2) of section 481 of 'the Act; they were later on amended by Delhi Administration Notification dated 13th April, 1964. The essence of the argument by Shri V. M. Tarkunde is that the plaintiffs had not pleaded any violation of any byelaw of 1959 which alone applies to the transaction in question and for this reason alone the plaintiffs are out of court. The relevant amended byelaw of 1964 is 98(4), the previous byelaw was 98(5). In so far as it is material for the present case it has to be noticed that bye-law 98(5) prohibited such a construction within a distance of 152.40 metres from a school or a petrol station whereas the corresponding byelaw, as amended in 1964 [98(4) (e)] prohibited such a construction within a distance of 500 yards of a petrol station, place of worship or school. Whereas the trial court did not specifically discuss this aspect, the lower appellate court did not at all notice the distinction between the relevant byelaws as they stood originally and as they were amended subsequently. The lower appellate court only analysed the municipal byelaws into three groups (vide paras 13 to 15 of the judgment) and said nothing particularly about the byelaws as they originally stood and how they were amended; it has also not noticed the facts of the present case in relation to the byelaws either unamended or amended. The plaintiffs did not help themselves in the least when they referred only to the later byclaws. There has been no finding, even prima facie, about the existence of a school or petrol station. Paragraph 4(h) of the plaint, extracted above, even overlooked the fact that the existence of a mosque etc. became relevant only under the amended byelaw and that there was no such byelaw earlier vis-a-vis existence of any religious building. There was not even an averment regarding a school or any petrol station as being situate within the prohibited distance of 152.40 metres as mentioned in the old byelaw (the distance mentioned in the plaint is 500 yards according to the new byelaw). While there is no averment of any petrol station or school as having existed at the time when sanction of the building plan was applied for, the petitioner had pointed out that the whole of paragraph 4(h) of the plaint was meaningless and frivolous; yet the replication merely reaffirmed para 4(h), emphasis against being placed on the sanction iteself being a fake one; an averment was brought in perhaps for the first time relating to the provisions of the Master Plan of Delhi (Delhi Development Act) to which aspect detailed reference will be made later.

(15) In paragraph l(g) of the reply affidavit filed by the respondents /plaintiffs (dated 9-9-1974) to the application dated 22-7-1974, filed in this Court, under section 151 Civil Procedure Code ., the following averments were made :

'(G)The plaint recited that proposed construction of the cinema building would be vocative of all the above mandatory conditions contained in bye-law No. 98(4) inasmuch as : (i) Bharatiya Mahila Higher Secondary Govt. School is situated within the prohibited distance- (ii) Two Mosques and also a Harijan Temple as well as a Dharamshala of L. Asa Ram are also situated within the prohibited distance. (iii) A petrol pump, police station and fire brigade are also situated in the same locality and within a prohibited distance. (iv) The existing G.T, Road is absolutely inadequate even for the present traffic and pedestrians. There is also no provision of roads as required in the bye-laws, and (v) There is residential locality on every side and no commercial pocket.'

(16) In the rejoinder dated 30-9-1974 which the petitioner filed thereto the above averments were met as follows :

'IT is further submitted that at the time when the sanction was granted to the petitioner in 1963, the Bhartiya Mahila Govt. Higher Secondary School, Shahadra was not constructed at its present site till 1971. Originally it was situated at a distance of more than 500 feet from cinema site and it opened out on the Shahdara Railway Station road instead of G.T. Road. Even the land on which the said school is now situated was acquired years after 1963.'

(17) A photostat copy of the letter by the Principal of the Bhartiya Mahila Govt. Higher Secondary School was also appended to the said rejoinder wherein it was stated that the Secondary School building was shifted to the building where it now is on the 12th May, 1971; this was to show that there was no such school at the relevant time when the application for sanctioning building plan was made and the same was sanctioned. A further affidavit dated 21-7-75 by one of the respondents/plaintiffs in this case (Brij Lal) was filed along with a photostat copy of a letter dated 10-5-1975 by the same Principal staling that while the school was shifted to the present building on 12th May, 1971, as far as 'my knowledge goes it was functioning in tents on the same site where the school building has been constructed for the last 17 years. During the period of four years i.e. w.e.f. 1967 to May 1971. it was shifted to a site behind Gandhi Memorial Boys Higher Secondary School, when the said School building was under construction.'

(18) It would be undesirable in the extreme to go into such averments made for the first time in this Court whose revisional jurisdiction under section 151 C. P.C. is invoked. These fasts have nonetheless been referred to for the purposec of showing that in the plaint as it was filed no such averments were made. It is worth emphasizing by way of repetition that the only challenge in. the plaint was on the basis of the bye-law as amended in 1964 which had obviously no relevancy. The contesting defendant (present petitioner) was not called upon to meet any case based on the unamended bye-law.

(19) On the materials which the lower appellate court had before it, it does not appear there was any basis for thinking that any municipal bye-law, as it applied at the relevant time, was contravened. The lower appellate court which altogether omitted to refer to this very significant aspect has persuaded itself to grant an injunction under the impression that relevant municipal bye-laws had been contravened.

(20) So far as the petrol station was concerned it had been stated by the plaintiffs in the above said affidavit that the petrol pump was not within the permitted distance at the relevant time and in the affidavit dated 21-7-1975 of Brij Lal the violations of the municipal bye-law were stated to be the plot in question being within 250 metres from the two mosques and a recognised educational institution: there was no reference to the petrol pump at all.

(21) The further objection that the G. T. Road alone by itself (without two roads abutting the plot) was insufficient from the traffic point of view, has no force in view of having obtained a 'no-objection certificate' from the concerned Police which has not been controverter as a fact.

(22) I am unable to find, in these circumstances, that the plaintiffs have made out any prima facie case of violation of any relevant municipal bye-law; no injunction could, thereforee, be directed to be issued pending suit on the basis of. any such violation.

(23) The present stand of the M.C.D., as it has already been stated, is not relevant so far as the present action of the plaintiffs is concerned. If the M.C.D. wishes to make out any case of infringement of any provision of the Act or the bye-law framed there under they have only to take other steps against the petitioner; it is sufficient to note that no such infringement has been made out so far. No such infringement of any municipal bye-law can be presumed in favor of the Municipality especially when the judgment of B. C. Misra, J. is having currency, there being no stay of operation of the order pending appeal. The significance of this cannot be got over, as Shri D. D. Chawla said, on the ground that the plaintiffs do not claim under the M.C.D.

(24) The next aspect which was discussed by Shri Tarkunde was concerning the Delhi Development Act and the plans which have to be framed under this Act. The Delhi Development Act, 1957 was one to provide for the development of Delhi according to plan and turn matters ancillary thereto. Under section 3. the Delhi Development Authority was constituted in the manner prescribed with its own staff (section 4), advisory council (section 5) and its own committees (Section 5A) with the object of promoting and securing the development of Delhi according to plan. For this purpose the authority was to have, among other things, the powers enumerated there in section 6 and generally to do anything necessary or expedient fur purposes of such development and for purposes incidental thereto. According to section 7, the authority shall carry out a civic survey and prepare a master plan which, it is common ground, was framed and camc into effect from the 1st of September, 1962. The master plan shall, according to section 7(2)(b). serve as 3, basic pattern of frame-work within which the zonal development plans (which are yet to be finalised) of the various zones may be prepared. Delhi has been divided into various zones for the purpose of the said development and rhc master plan shall indicate the manner in which the land in each zone is proposed to be used for (whether by carrying out thereon developments or otherwise) and the stages in which any such development shall be carried out. Simultaneously with the preparation of the master plan, or as soon as may be thereafter, the zonal development plan has to be prepared under section 8 for each of the zones into which Delhi may be divided. After preparation of such plans it shall be submitted to the authorities of the Central Government for approval. Section 10 prescribes the procedure to be followed in the matter of preparation of the plan and approval of the plan. Immediately after such approval the plan is to be published and it will come into effect from the date of such proclamation (section 11). According to section 11A modifications may be made to the master plan or the zonal development plan by the authority only of such a nature that would not effect important alterations in the character of the plan and which do not relate to the extent of land uses or the standards of population density. Under section 12, the Central Government may. by notification in the official gazette, declare any area in Delhi to 'be a development area for the purposes of the said Act, and no development shall be undertaken or carried out in such area without the permission of the authority. Section 13 lays down the procedure for application for such permission.

(25) According to section 14, no person shall use or be permitted to use any land or building in that zone otherwise than in conformity with such plan after the coming into operation of any of the plans in the zone. The proviso thereto says that it shall be lawful to continue to use upon such terms and conditions as may he prescribed by regulations made in this behalf any land or building for the puspose and to the extent for and to which it is being used upon the date on which such plans come into force. According to section 9(1) the expression 'plan' used in some of the provisions including section 14 would mean the master plan as well as the zonal development plan for a zone.

(26) Section 30 of the said Act enables the Delhi Development Authority to order demolition of building which has been commenced or is being carried on or has been completed in contravention of the master plan or the zonal development plan or without the permission. approval or sanction referred to in section 12 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, under orders of the concerned, authority specified therein.

(27) Section 60 is the usual repeal and savings provision: the said Act has repealed, among others, the United ProvineeS Town Improvement Act, 1919, which was formerly in force in the Union Territory of Delhi. Sub-section (b) thereof is important and may be set out:

'ANYTHINGdone or any action taken (including any appointment delegation, notification, order, scheme, permission, rule. bye-law, regulation or form made, granted or issued) under any of the aforesaid Acts, shall, so far as it is not inconsistent with the provisions of this Act, continue in force and be deemed to have been done or taken under the provisions of this Act unless and until it is superseded by anything done or any action taken under the said provision.'

(28) It is not disputed that the area where the cinema in question is now constructed is a residential area as shown in the master plan. After considerable time was spent in arguing whether it 's a 'purely' residential area it was realised that there could be cinema houses in residential areas also; the number of cinema houses and where they should be located has been dealt with in the master plan. It is common ground that the zonal plan has not come into existence. This is admittedly a built up area in which the local municipal authority had the power to sanction building plans in respect of cinema houses also. The question whether any relevant bye-law was contravened has already been discussed. Such sanctions of the Municipal Corporation will continue to have operation unless it is shown that they arc inconsistant with anything clone under the Delhi Development Act of 1957. There is no such proof, even prima facie. The master plan (vide page 45) allows such uses as may be based on quick surveys and on an ad-hoc basis, until zonal development plans are prepared. The latter, when prepared, will incorporate the land use proposals prepared by the local authorities. Detailed provisions have been made in the master plan for calculating the density of population, the object being to achieve 'the overall density prescribed for the area' (page 54). Among the features which the zonal development plans should show. in broad outline, are the Community Centre and the Residential Planning Area Centre (vide page 64, para, 3). It may be noticed that the land use is not one of those to be shown in the zonal development plan; this is already decided in the master plan. The Community Centre may be shown in the master plan itself (as it has been shown in a few cases though not in all, so far as this area is concerned); if it has not been so shown in the master plan the Community Centres can be demarcated later in the zonal plan. These features, which arc to be shown in the plans, are aimed at ensuring that the community functions and grows up in a manner that will help avoid future slums and social imbalances.

(29) The community structure itself has been set out in (page 65, para 4) of the master plan. The lowest tier in the urban complex will be the 'housing cluster' containing 750 to 1000 population. these clusters roughly correspond to the traditional 'Mohallas' or 'kuchas' in the Old City. It will have, as its nucleus, a nursery school with a tot lot. The housing clusters will be grouped together around a primary school and convenience stores with a small park to form a 'residential unit' of 3500 to 5000 people. A residential planning area of 12,000 to 15,000 population was also envisaged, which will have for its focal point a high school and a community hall with adequate neighborhood shopping for day to day needs (80 to 100 for Community Centres and about 200 to 350 in the District Centres; vide page 67). There is also provision for additional facilities in the Community Centre like health centre, library, cinema, retail shop and recreation centre; to achieve this end three residential planning areas are grouped to form a Community Centre. Several of these community centres are grouped to form a District Centre which will have a population ranging between 1,50,000 to 2.50,000. All the District Centres are to be shown in the Land Use Plan. In the zonal development plan the community centres will have to be shown, as also the residential planning area centres. It is seen from table 3 of page 67 of the master plan that the cinema is shown under the heading of community centre and not of a district centre; it isscen from table 5 column 5 (page 68) of the master plan that cinemas are to be at the rate of 50,000 population to be located in the District and Community Centres. The present action of the plaintiffs would be premature in any view of the case.

(30) I am unable to find anything in the master plan to support: the submission of Shri D. D. Chawla, learned counsel for the plaintiffs, that there could not be two cinema houses adjoining each other. It is worth recalling that there is already Radhu Talkies next the plot in dispute where the cinema has been constructed by the petitioner. 1: is needless even to be detained by the further question as to whether there is a proposal to shift the Radhu Talkies to some other place, the Radhu Talkies having been at the place where it is now since the lime before the application for sanctioning the building plan was made and the plaintiffs having purchased that plot in the neighborhood between the year 1965 and 1972. The question which appears relevant and crucial for the present controversy is thereforee, not whether the area is a residential one according to the master plan but whether a cinema house could be constructed in the said area according to the provisions of the master plan. After carefully going through the relevant provisions of the master plan Shri D. D. Chawla was unable to draw my attention to any provision therein which would prevent a cinema house from being constructed in the above plot in question, despite the Radhu Talkies also being '.here. If there should be any difficulty on this score it may even be solved in more than one way as submitted by the petitioner :

(1)shifting the Radhu Talkies; (2) adjusting the community centres in such a manner as to accommodate the two cinemas, even in view that there should be only one cinema in every community centre, if that be the correct view (on which question it seems needless to express any opinion now). The only provision in the master plan, as already noticed above, seems to be that the provision of the cinema can be made at the rate of 50,000 population which may well be the minimum rather than the maximum (on which question again no opinion need be expressed). 31, Reference may also be usefully made to the observations of Alagiriswami. J speaking for the Supreme Court in Faqir Chand v. Ram Rattan Bhanot, A.I.R. 1973 S.C. 92 where Alagiriswami, J. 593 referred to the relevant provisions of the Delhi Development Act and observed as follows concerning section 14 of the said Act: The section, thereforee, does not contemplate prohibition of the use of a land or building for purposes other than that permitted in the zonal plan. Such terms can be continued subject to terms and conditions preseribed by the regulations provided it had been there even before the zonal plan. It is admitted that no such regulations have even been framed. thereforee, even if a zonal plan had come into operation in this area (we have already shown such a zonal plan has not come into force in this area) the previous use can be continued till the regulations are framed and after the regulations arc framed they will be subject to the terms and conditions of those regulations. That zonal plans have not been prepared has been recognised by this Court in its decision in Municipal Corpn. v. Kishan N969) 2 Scr 166=A.I.R. 1969 Sc 3S6. We are of the opinion, thereforee, that S. 14 of the Delhi Development Act has no relevance in deciding the question at issue in these two appeals.'

(32) It is brought to my notice that pending the revision petition the petitioner has obtained a certificate under Cinematograph Act.

(33) All these are, thereforee, sufficient prima facie to indicate that there could be no valid objection by the plaintiffs to the cinema being run in the above plot. The plaintiffs, thereforee, did not make out a prima facie case for the issue of an interim injunction.

(34) The lower appellate court, however, proceeded on the ground that the plaintiff's' houses being near to the place where the cinema was being constructed they would be exposed to the noise till midnight and pickpockets and other unsocial elements frequenting those places. The lower appellate court clearly misdirected itself by referring to the above aspects which were not even pleaded. .

(35) The true legal position, as it was pointed out by Supreme Court in K. Ramadas Shinoy, is that a building contrary to bye-laws of a Municipal Corporation would become actionable per se by a neighbour. If any plaintiff, however, chose to rest his case on nuisance, by way of a threatened injury, he must establish, in what is known as a quia timet action, the certainty of substantial or irreparable injury from the act contemplated by the defendant (fide Fleteher v. Beajey (1884) 28 Ch. D. 68S. The principles on which the courts act in such cases and grant injunctions in the case of a threatened injury have been indicated in paragraph 764 of the Halsbury's Laws of England, 3rd Edition Volume 21 by Lord Simonds as follows:

'ANinterlocutory injunction will also be granted to restrain an apprehended or threatened injury' where the injury is certain or very imminent, or mischief of any overwhelming nature is likely to be done. especially destructive operations. If the thing sought to be prohibited is in itself a nuisance, or, although not in Itself a nuisance, will manifestly end in such a nuisance as the Court restrains, the Court will interfere; but where the mischief sought to be restrained is not unavoidably and in itself noxious, but only something which may prove to be so. an interlocutory injunction will not be granted.'

Yet another passage from Halsbury's Laws of England, 3rd Edition volume 28 by Lord Simonds, paragraph 242 may also be noticed :

'an injunction may be granted to restrain the commission of a prospective nuisance. To obtain such an injunction it is necessary to show a strong case of probability that the apprehended mischief will in fact arise. If imminent danger of a substantial kind is shown, or should it appear that the apprehended danger, if it comes, will be irreparable, an injunction will be granted.''

(36) The case of the plaintiffs has not been rested on any such ground, in fact the construction was sought to be prevented on the ground that some municipal bye-laws having operation from a later period than the concerned period were infringed. No prima facie case has been made out on the footing of any bye-law. The attack on the ground of the said construction violating the Delhi Development Act or the master plan has also been already considered.

(37) In the light of the above discussion it follows that the legal approach of the lower appellate court was gravely erroneous and it Consequently misdirected itself when it granted an injunction, pending suit, restraining the petitioner from running his cinema at the place in question. The impugned order passed by the lower appellate court is set aside and the revision petition is accepted accordingly.

(38) I propose to deviate from the usual rule of costs following the event because the petitioner indulged in an unjustified accusation against the learned Additional District Judge and went the length of falsely saving that the impugned Order was ante-dated by him. This only reveals an unfortunate tendency, which seems to be growing, of litigants not hesitating to make scurrilously false attacks on Judge if only it suits their purpose to do so. A possible remedy for this obviously lies in learned members of the bar not lending their support to such attempts, unless they are themselves reasonably convinced about the genuineness of such accusations.


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